Decatur Waterworks Co. v. Foster

• Decision Date: 24 May 1909
• Citation: 49 So. 759,161 Ala. 176
• Parties: DECATUR WATERWORKS CO. v. FOSTER.
• Court: Alabama Supreme Court

49 So. 759

161 Ala. 176

DECATUR WATERWORKS CO. v. FOSTER.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Action by James A. Foster against the Decatur Waterworks Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following charges were refused to the defendant: (2) "Under the charter of the municipality of Decatur, I charge you that the city authorities had the right and power to grant to the water company, or those under whom it claimed, the right to lay its pipes and mains and erect its fire plugs in the streets of Decatur." (4) "The waterworks company is a public utility company, and as such the municipal authorities had the power to grant to it a franchise for the use of its streets for the purpose of supplying water to its inhabitants and for fire protection for the property of the inhabitants." The facts and the pleadings are sufficiently stated in the opinion.

John C Eyster, for appellant.

Callahan & Harris, for appellee.

McCLELLAN J.

The appellee's motion to strike the bill of exceptions cannot be sustained. The status on which the motion is predicated is, in short, that the bill of exceptions was signed after the appeal had been taken. The office of a bill of exceptions is to afford the appellate court a history of the proceedings below. It is not judicial action in the case in the sense of adjudging or enforcing the rights of parties litigant. The act of signing a bill of exceptions is an authentication only of the memorial of the proceedings below, and, when properly authenticated, becomes a part of the record of this court.

The action is for damages for injury suffered by plaintiff (appellee) in consequence of a buggy in which he was riding being pulled by a shying horse against a fire plug of the defendant, located about three feet from the curb, in a public and much used street. The appellant insists, and appropriately raised the inquiry on the pleadings, that the injury must be ascribed for proximate cause to the shying of the horse, and not to the alleged negligent location, etc of the fire plug in the street. In the recent case of McLemore v. City of West End, 48 So. 663, this question in substance was considered and treated and was then ruled against this appellant's contention. No error therefore, infected the action of the trial court in applying the principle indicated. Crowley v. West End, 149 Ala. 613, 43 So. 359, 10 L. R. A. (N. S.) 801, turned in decision upon the intervention of an independent cause, viz., the effort of the plaintiff to assist the fallen horse to his feet; and hence is not influential in the case in hand. Through rulings sustaining demurrers to a number of pleas and also in excluding evidence proffered by the defendant, the court denied to defendant the asserted defense that the fire plug was located as directed by the city council of Decatur, on which, by charter, was conferred the power and authority to control such matters. The complaint in effect charged that the fire plug, as located,...